Hoang and Nghiem

[2007] FamCA 1570

FAMILY COURT OF AUSTRALIA

HOANG & NGHIEM [2007] FamCA 1570

FAMILY LAW – PROPERTY – Third party claim not pressed – Final orders

Family Law Act 1975 (Cth)

HUSBAND: Mr Hoang

WIFE: Ms Nghiem

THIRD PARTY: Mr Q

FILE NUMBER: MLF 7299 of 2001

DATE DELIVERED: 3 December 2007
Amended orders : 
19 December 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 3 December 2007

REPRESENTATION

COUNSEL FOR THE HUSBAND: Ms. Teisher

SOLICITOR FOR THE HUSBAND: Oakfair Lawyers

COUNSEL FOR THE WIFE: Mr. Berkovitch

SOLICITOR FOR THE WIFE: Donald S. Lampe

COUNSEL FOR THE THIRD PARTY No Appearance

SOLICITOR FOR THE THIRD PARTY: Norton White Lawyers

Orders

1. In accordance with the Minute of Proposed Orders sealed and attached hereto, the Court noting that the orders are made with the consent of the husband and the wife  AND IT IS DIRECTED  that such Minutes remain upon the Court file.

IT IS FURTHER ORDERED

1. That the third party Mr Q (also known as …) (“[Mr Q]”) sign all documents and do all things as are necessary to forthwith transfer to the wife all of his right, title and interest in the property situated at and known as …, M (“the [M property]”) and being the land more particularly described in Certificate of Title Volume … Folio ….

2. That the third party Mr Q (also known as …) (“[Mr Q]”) sign all documents and do all things as are necessary to forthwith transfer to the husband all of his right, title and interest in the property situated at and known as …, V (“the [V property]”) and being the land more particularly described in Certificate of Title Volume … Folio ….

3. That pursuant to s.106A of the Family Law Act1975 a registrar of this court at Melbourne be appointed to sign all documents and do all things necessary to give force and effect to paragraph (3) of the attached minutes and it shall be sufficient authority for a registrar to act pursuant to this order for a document which requires the signature of the third party to be produced by a solicitor for the husband or wife to the registrar and there be no requirement for there to be any prior attempt to locate the third party or request his signature. 

4. That all extant applications be otherwise dismissed.

5. That these proceedings be removed from the List of matters awaiting finalisation.

6. That the reasons for judgment this day be transcribed and that copies be made available to the parties.

7. That pursuant to Rule 19.50 of the Family Law Rules2004 this matter reasonably required the attendance of counsel.

IT IS NOTED that publication of this judgment under the pseudonym Hoang & Nghiem is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 7299 of 2001

MR HOANG  

Husband

And

MS NGHIEM  

Wife

And

MR Q
Third Party

REASONS FOR JUDGMENT

1. These proceedings have been on foot for a very long time.  Although there are references to three parties, the third party, Mr Q, who was the wife's second husband, has filed no material, despite numerous orders to do so.  There have been a number of pre-trial conferences and directions hearings, and a number of default orders. 

2. The husband and wife commenced cohabitation in 1980, married in 1995, separated in 1999 and were divorced in late 2000.  They had two properties, being the family home, the M property, and a vacant block of land, the V property; it is those properties which provide the bulk of the asset pool.  As I read the evidence, they agreed between themselves that the husband would transfer to the wife the family home and she would transfer the block of land to him.  He complied with his part of the bargain.  When it came to the block of land it was discovered that Mr Q, who is the wife's second husband, was registered as a joint proprietor.

3. The wife and Mr Q married in November 2001 and separated in December 2005.  They were divorced in May this year.  The evidence is that for most of the time he was married to the wife, he was in Vietnam or the United States, his family having migrated from Vietnam to the United States.  It is alleged he has a number of aliases.  A number of allegations are made against him.  Some are fairly dramatic, involving extortion and illegal activities.  The evidence supports a finding that the husband and wife agree that Mr Q acquired an interest in the property through some form of deception or fraud. 

4. Mr Q has been called today.  The evidence of the wife's solicitors is of valiant attempts to find him and advise him of the proceedings.  He has not appeared.  He has never filed a response.  In my judgment, the proceedings between the husband and wife must be finalised.

5. To their credit, the husband and wife have managed, with the assistance of their lawyers, to agree about property orders.  They have agreed that the wife will keep the former matrimonial home, valued at around $300,000 to $350,000.  The husband will keep the land, valued at about $200,000.  They have sorted out a disagreement about a safety deposit box, frozen by earlier orders.  They have agreed on what should happen in relation to child support for the child; orders will be made in the Federal Magistrates’ Court to give effect to that agreement.  They have also agreed on parenting orders. The child will continue to live with his mother and spend such time as is agreed with his father. 

6. I am satisfied that the proposed property orders represent a just and equitable settlement as between the husband and wife, and that the court should make orders in those terms.  I am also satisfied that the proposed parenting orders are in the child’s best interests.

7. I will make final orders, by consent, in the terms of the minutes, for parenting and property orders. The parties have agreed that there should be an order pursuant to s.106A of the Family Law Act1975 to allow a registrar of the Family Court of Australia at Melbourne to sign all documents and do all things necessary in the name of Mr Q to give force and effect to the orders. I propose to add an order, on my initiative, which will ensure the registrar can sign the necessary documents upon production of them to him or her by the parties' respective solicitors.  There will be no need to prove a default by the third party or further attempts to find him.  I dispense with the requirement for those transfers to be signed by Mr Q himself.

I certify that the preceding 7 paragraphs are a true copy of the reasons for judgment herein of the Honourable Justice Brown AM.

Associate

3 December 2007